United States Department of Labor Office of Administrative Law Judges Law
Library
UNITED STATES DEPARTMENT OF LABOR *
OFFICE OF THE SOLICITOR * CIVIL RIGHTS DIVISION
INDEX TO ADMINISTRATIVE DECISIONS UNDER SECTION
503 OF THE REHABILITATION ACT OF 1973
TOPIC 170: REGARDED AS
HANDICAPPED
NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS
DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR
INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES,
AND WAS LAST REVISED IN NOVEMBER, 1996.
Regarded as having a physical or mental impairment includes any limitation which such a
person experiences as a result of a condition which is not caused by the condition but by the
actions of other persons predicated on a view that such condition constitutes an impairment.
OFCCP v. E.E. Black, Ltd., 77-OFCCP- 7R, Assistant Secretary for Employment
Standards Dec. and Order, February 26, 1979, slip op. at 15, aff'd, E.E. Black v.
Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26
FEP Cases 1183 (D. Hi. 1981).
Examples of what constitutes regarded as having a physical or mental impairment.
Id. at 14-15.
The definition of regarded as having a physical or mental impairment includes persons who
have no physical or mental impairment but are believed by the contractor to be impaired.
Id.
Regarded as having a physical or mental impairment includes in its definition persons whose
impairment has a less than substantial effect on a major life activity or any substantial limitation
which is the result of the attitudes of a contractor toward the impairment. Id. at 14.
To determine whether a person is handicapped under the statutory definition of being
regarded as having such impairment depends upon perceptions of them at the time of the
employment discrimination rather than the discriminatee's actual physical conditions and
capacities. OFCCP v. Southern PacificTransportation Co.,
79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 36-37; remanded on other
grounds, Acting Assistant Secretary for Employment Standards Decision and Order of
Remand, February 24, 1994; ConsentOrder, October 13, 1995.
OFCCP has the burden of proving that an individual is regarded as handicapped.
OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26,
1986,
slip op. at 15,rev'd on other grounds, Assistant Secretary for Employment Standards
Final
Decision and Order, February 10, 1994, remandedsub.nom.,
CommonwealthAluminum Corp., v. United States Department of Labor,
No.
94-0071-0(c)(W.D. Ky. September 6, 1996).
Included within the broad definition of "handicapped individual" in Section 503
and the regulations are those persons whom the employer perceives to be handicapped even
though they actually have no physical or mental impairment. OFCCP v. Central
Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 4;
ConsentDecree, December 10, 1991.
The applicants were rejected because of their physical conditions, which the employer
perceived to weaken, diminish and restrict their physical work activity, and were regarded as
having physical impairments which substantially limited a major life activity and are therefore
handicapped individuals as defined by Section 503(c). Id. at 5.
Seven vocationally qualified job applicants were qualified handicapped individuals, who
were
denied employment because the defendant perceived them as having handicaps based on back
x-ray results, whether or not the impairment actually existed. OFCCP v. Texas
Utilities
Generating Company, 85-OFC-13, ALJ Rec. Dec. and Order, March 2, 1988, slip op. at 9,
remanded on other grounds, Assistant Secretary for Employment Standards Decision and
Order of Remand, August 25, 1994; ConsentDecree, April 15, 1996.
The employer's practice of excluding otherwise qualified job applicants purely on the basis
of
x-rays, with no consideration of their actual medical history or ability to perform, violated
Section
503. Id.; remanded on other grounds, Assistant Secretary for Employment
Standards Decision and Order of Remand, August 25, 1994; ConsentDecree,
April 15, 1996.
The complainant was a handicapped individual because the evidence showed that her
congenital lower back deformity and her partial laminectomy were perceived as physical
limitations, actually were physical limitations, and substantially limited her in securing
employment. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant
Secretary for Employment Standards, June 7, 1988, slip op. at 8, rev'g, ALJ Rec. Dec.,
June 10, 1981, remandedonothergrounds, Assistant Secretary
for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ
Decision and Order on Remand, March 11, 1991; remanded on other grounds, Assistant
Secretary for Employment Standards Decision and Order of Remand, January 27, 1995,
ConsentDecree, June 21, 1996.
Though complainant had never experienced adverse effects of any kind as a result of his
mild
hypertension, he was regarded as handicapped by the defendant and was therefore a handicapped
individual within the meaning of 503. OFCCP v. WMATA, 84-OFC-8, ALJ
Rec.
Dec., June 10, 1988, slip op. at 6, aff'd, Acting Assistant Secretary for Employment
Standards Final Dec. and Remand Order, March 30, 1989, vacatedonothergrounds, WMATA v. DeArment, 55 EPD ¶40,507
(D.D.C. 1991).
The defendant's contention that the complainant's were not "regarded" as
"handicapped" since their back conditions affected their employability only in
"
particular job" is without merit. OFCCP v. Yellow Freight System, Inc.,
79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 48, remandedonothergrounds, Special Assistant to the Assistant Secretary for
Employment Standards, August 24, 1992; ConsentDecree, February 2, 1993.
All complainants were found fully physically qualified to drive on the basis of physical
examination but were rejected for hire only after x-rays disclosed the presence of certain back
conditions. Whether the complainants' back conditions were actually handicapping or were only
so regarded, the complainants were be definition "handicapped" individuals.
Id. at 49.
The contractor did not regard the complainant as unsuited for only the particular
requirements of its particular carpenter's job. This was no isolated mismatch of employer and
employee stemming from the unique or unusual demands of one specific position. As defendant
viewed the complainant, he could not perform any carpenter's job, or indeed any heavy labor job,
because his blood pressure made him an unacceptable risk. OFCCP v. WMATA,
84-OFC-8, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order,
March 30, 1989, slip op. at 21, vacatedonothergrounds,
WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).
The fact that the complainant has been able to obtain other jobs in the construction industry
does not take him out of the definition of a handicapped individual. The focus under clause (iii)
of
the definition is how the contractor viewed the complainant, not whether other employers applied
the same, possibly irrational, standard. Otherwise, an employer who persists in utilizing
outmoded medical and scientific standards, after the rest of the community had become
enlightened, would be free to discriminate. Id. at 22.
An individual is covered under the Rehabilitation Act if he is viewed by an employer as
disqualified for the kind of job under consideration, whether or not it affects (substantially limits)
his ability to obtain other similar jobs with other employers. Id.
The defendant railway company perceived the complainant's moderate obesity and
hypertension as conditions precluding her from safely performing the job of a shop laborer.
Therefore, the complainant, at a minimum, had a perceived impairment affecting a major life
activity, i.e., employment. OFCCP v. Norfolk and Western Railway Co.,
88-OFC-4, ALJ Rec. Dec. and Order, June 28, 1989, slip op. at 18, stipulateddismissal, November 13, 1991.
If an employer perceives an impairment the complainant does not have, then OFCCP does
not
have to demonstrate that the impairment existed in fact. It is sufficient that the perceived
impairment affected her employability. Id.
The complainant, who had a knee condition, was regarded as handicapped by the contractor
because it viewed him as physically unqualified for any position, unless he was able to obtain a
medical release with no restrictions on his regular duties. OFCCP v. Cissell
Manufacturing Co., 87-OFC-26, Assistant Secretary for Employment Standards Dec. and
Order of Remand, December 5, 1989, slip op. at 6-7, ALJ Rec. Dec. on Remand, May 22, 1992,
affirmed, Acting Assistant Secretary for Employment Standards Final Decision and
Order,
February 14, 1994,; finaldecisionvacatedsub.nom.,
Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky.
May 24, 1994), appealpending.
A contractor regards complainant as handicapped by finding the complainant's impairment to
foreclose generally the type of employment involved. OFCCP v. Rowan Companies,
Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 6, remandedonothergrounds, Special Assistant to the Assistant Secretary for
Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on
Remand, January 4, 1993; remandedonothergrounds, Assistant
Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ
Decision and Order on Remand, March 11, 1996; pending, Administrative Review
Board.
The fact that other employers may have been willing to hire complainants, i.e., did
not
regard them as handicapped, has no bearing on whether contractor regarded complainants as
handicapped. Ibid., remandedonothergrounds, Special
Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May
28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remandedonothergrounds, Assistant Secretary for Employment Standards Order of Partial
Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996;
pending, Administrative Review Board.
In determining whether contractor regarded complainants has handicapped, the focus is on
the type of jobs from which complainants were foreclosed, not the number or quantity of jobs
foreclosed. Ibid., remandedonothergrounds, Special
Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May
28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remandedonothergrounds, Assistant Secretary for Employment Standards Order of Partial
Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996;
pending, Administrative Review Board.
Because contractor considered complainants foreclosed from performing a type, genre or
class of jobs -- not just contractor's roustabout or floorhand positions, but any roustabout
or floorhand position -- contractor regarded complainants as handicapped. Id. at 6-7,
remandedonothergrounds, Special Assistant to the Assistant
Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec.
and Order on Remand, January 4, 1993; remandedonothergrounds, Assistant Secretary for Employment Standards Order of Partial Remand, April
11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending,
Administrative Review Board.
Complainant was a handicapped individual under Section 503 and the regulations because
contractor perceived complainant as suffering from epileptic seizures, an impairment which
substantially limits a major life activity. OFCCP v. Exide Corporation,
84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April
30, 1991,
slip op. at 7, vacatedsub.nom., Exide Corporation v.
Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 16.
OFCCP has burden of showing that not only does complainant's handicap prevent him from
performing the singular demands of a particular job, but that it also forecloses generally the type
of employment involved, assuming that all employers offering the job would use the same
requirement or screening process. OFCCP v. Norfolk and Western Railway Co.,
90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 30; ConsentDecree, November 22, 1991.
OFCCP met its burden of proving that complainant's monocular condition substantially
limits
his ability to find work as a brakeman/conductor or similar employment where contractor
rejected
complainant because of his monocular condition and it must be assumed that all employers
offering the job would reject him on that basis. Ibid.
Subsection (iii) of the definition of individual with handicaps includes individuals who are
regarded as having an impairment even though there may be no actual incapacity at all.
OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order,
May 22, 1992, slip op. at 12, affirmedonothergrounds, Acting
Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994;
finaldecisionvacatedsub.nom., Cissell
Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24,
1994), appealpending.
Subsection (iii) of the definition of individual with handicaps, which includes individuals
who
are regarded as having impairments, was enacted to eliminate discrimination stemming not only
from simple prejudices, but also from archaic attitudes and facts. Ibid. ; affirmedonothergrounds, Acting Assistant Secretary for Employment Standards
Final Decision and Order, February 14, 1994; finaldecisionvacatedsub.nom., Cissell Manufacturing Co., v. U.S. Department of
Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appealpending.
The inquiry of whether an individual is handicapped under Section 503 is an individual
factual
issue focusing on the particular circumstances of the person and his employment circumstances.
Ibid.; affirmedonothergrounds, Acting Assistant
Secretary for Employment Standards Final Decision and Order, February 14, 1994; finaldecisionvacatedsub.nom., Cissell Manufacturing Co.,
v.
U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appealpending.
Although employee's knee impairment affected his ability to work in jobs requiring stooping
and bending, which would not necessarily substantially limit his employment in general, and
although there was no proof that he was substantially limited in his overall geographic
employment opportunities, employee meets the definition of handicapped individual because
contractor regarded or treated employee as so impaired, precluded him from all employment in
their operation and, thus, inhibited his ability to secure, retain, or advance in employment.
Id. at 13-14; affirmed, Acting Assistant Secretary for Employment Standards
Final Decision and Order, February 14, 1994, at 6-7; finaldecisionvacatedsub.nom., Cissell Manufacturing Co., v. U.S.
Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appealpending.
Complainant who had a non-disabling condition known as occipital arteriovenous
malformation in the left side of his brain which, according to the record, "probably did not
cause" his inaccurate perception that he was an epileptic, does not fall within subsection (i)
or (ii) of the definition of handicapped individual. Exide Corporation v. Martin,
Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 11.
Regardless of what an employee "believes" or what he tells a company
concerning his "perceived condition," there must be some evidence that the company
took concrete action directly related to the employee's claimed condition, and that these actions
have not been taken with respect to non-handicapped individuals, before a finding can be made
that the contractor actually "regarded" the individual as "handicapped."
Id. at 12.
Contractor's request that employee who claimed to be epileptic produce a release from his
doctor stating that he could work on dangerous equipment and under dangerous conditions does
not evidence that the contractor regarded him as handicapped but, instead, was consistent with
company policy of making sure that return to work excuses for all employees are "adequate
and complete" and to ensure that the complainant's physician had sufficient information to
make a recommendation about his ability to return to work. Id. at 16.
"Individual with handicaps" includes any person who (i) has a physical or mental
impairment which substantially limits one or more of such person's major life activities; (ii) has a
record of such impairment; or (iii) is regarded as having such an impairment. OFCCP v.
Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 24;
affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at
4.
The contractor "regarded" the complainant (a recovering alcoholic) as
handicapped because it transferred him to another job pursuant to its substance abuse policy
under
which all recovering alcoholics are presumed to be unable to perform safety sensitive jobs.
Id. at 26; affirmed, Administrative Review Board Final Decision and Order,
October 28, 1996, at 5-6.
The contractor "regarded" the complainant (a recovering alcoholic) as
handicapped because it did not preclude him from only a handful of jobs but perceived him as
incapable of performing 10% of the jobs in the company. Id. at 27; affirmed,
Administrative Review Board Final Decision and Order, October 28, 1996, at 5-6.
[I]t is clear that Commonwealth regarded complainant as handicapped because he was
foreclosed generally from positions involving manual labor from the time of his initial
application
until he was hired, [one year later]. OFCCP v. Commonwealth Aluminum Corp.,
82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February
10,
1994, at 19; remandedsub.nom., onothergroundsCommonwealthAluminum Corp., v. United States
Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).
Where an employer regards an individual as being foreclosed generally from heavy manual
labor positions that individual is considered handicapped. Id. at 21; remandedsub.nom., onothergroundsCommonwealthAluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D.
Ky. September 6, 1996).
The Assistant Secretary held that, though complainant had a correctable hernia at the time of
his application, he was handicapped because Commonwealth regarded him as being foreclosed
generally from employment with them. Id. at 22; remandedsub.nom., onothergroundsCommonwealthAluminum
Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky.
September 6, 1996).
The Administrative Law Judge held that Delta did not regard myopic pilots as having an
impairment, but rather unable to meet the requirements of a single job. To meet the definition,
an
employer must find that the individual's perceived impairment generally forecloses him or her
from
performing the type of employment involved. OFCCP v. Delta Airlines, Inc.,
94-OFC-8, ALJ Rec. Dec. and Order on Cross-Motions for Summary Judgment, March 20, 1996,
at
11; exceptionspending, Administrative Review Board.
Cissell regarded or treated the complainant as . . . impaired by precluding him from all
employment in their operation. OFCCP v. Cissell Manufacturing Co.,
87-OFC-26,Acting Assistant Secretary for Employment Standards Final Decision and Order,
February 14,
1994, at 6-7; finaldecisionvacatedsub.nom., Cissell
Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24,
1994), appealpending.
The definition of "regarded as" applies to those who are regarded as impaired
and
who, as a result, are substantially limited in a major life activity due to society's accumulated
myths and fears about disability and disease. OFCCP v. American Telephone and
Telegraph Company (AT&T), 92-OFC-5, ALJ Order Denying Defendant's Motion for
Summary Judgment and Granting in part Defendant's Motion in Limine, April 23, 1995, at 5.
The proper test for whether a perceived impairment substantially limits a major life activity
is
whether the impairment, as perceived, would affect the individual's ability to find work across
the
spectrum of same or similar jobs; citing Partlow v. Runyon, 826 F.Supp. 40 (D.
N.H. 1993) and E.E. Black Ltd. v. Marshall, 497 F.Supp. 1088 (D. Haw. 1980).
Id. at 5.
Although Complainant may have obtained employment after being placed on disability
status,
this does not foreclose a finding that he was perceived as handicapped. The absence of bias by
some employers does not mean that other employers would not refuse to hire him based on his
perceived handicap. Id. at 6.
Evidence of United's policy of not hiring pilots who have undergone radial keratotomy
surgery and the application of the policy to the complainant creates a genuine issue of material
fact as to whether United regarded the complainant as impaired. OFCCP v. United
Airlines, 94-OFC-1, July 20, 1995, ALJ Order at 2-3.
An employee may fall under subpart (iii) of the definition [of individual with a disability], if
he
has an impairment that does not substantially limit a major life activity, but the impairment is
regarded as being substantially limiting. The ARB further noted that individuals also come into
this category if they have an impairment which is substantially limiting only because of attitudes
of
others toward the impairment. For example, a job applicant's facial scar may be substantially
limiting because the prospective employer believes it will dissuade customers. Finally, an
individual with no impairment may be regarded as having one that is substantially limiting. This
circumstance would encompass discrimination based on the mistaken belief that an individual is
physically or mentally impaired or on genetic information relating to illness, disease or disorders.
OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision
and Order, Administrative Review Board, October 28, 1996, at 5 and n.7.
By including the "regarded as" criterion, "Congress acknowledged that
society's accumulated myths and fears about disability and diseases are as handicapping as are
the
physical limitations that flow from actual impairment." School Board of Nassau
County v. Arline, 480 U.S. 273, 283 (1987). Id. at 5.
Congress clearly intended coverage of individuals treated for alcoholism. Consequently, the
ARB held that since Exxon perceives the possibility that complainant's alcoholism could affect
his
work performance if he were to suffer a relapse, he is regarded as having an impairment that
affects employment in these circumstances. Id. at 5 and n.8.